By Kumar David –

Prof. Kumar David

The good news is that the six subcommittees (Fundamental Rights, Judiciary, Finance, Law & Order, Public Service and on Centre-Periphery Relations) have submitted their reports; all good work and if the exercise keeps on track this constitution could be much better than its predecessors of 1972 and 1978. It is not often that one has an opportunity to congratulate our MP’s; so well done! This piece deals with the main points; Dr Jayampathy Wickremeratne has a 70 page softcopy tabular comparison of the existing and proposed versions.

First a worrying claim about President Maithripala Sirisena carried by The Indian Express (PK Balachandran: “Sri Lankan constitution making process hits a serious snag”) on 3 Jan:

“President Sirisena told the Buddhist high priests that he would once again consult the masses on the constitution, setting aside the report of the Public Representations Committee (PRC) done after an exhaustive island-wide survey. On Sunday the President told the Mahanayakes of Malwatte and Asgiriya that he does not intend to include any divisive elements in the constitution. By this he meant (according to Balachandran) that the constitution will be unitary and not federal, the North and East will not be combined into a Tamil-speaking province, Buddhism will not be denied the “foremost place” and the constitution will not be drafted without the blessings of the Mahanayakes”.

“(T)he report of the PRC (may) be jettisoned in favour of a fresh exercise. (T)he committee did not say whether the constitution should be unitary or federal (but) wanted to turn the now powerful Provincial Governors into rubber stamps of the Chief Ministers and had sought powers over land and police for the provinces. This set off alarm bells among the majority Sinhalese who considers this to be secessionist (according to Balachandran)”.

This is hard to believe, I hope a figment of the writer’s imagination, but a more credible rumour is that the President and his wing of the SLFP do not favour a new constitution but prefer amendments. Their argument it seems is that it is difficult to win a referendum on a radical new constitution but compromises can muster the requisite two-thirds majority in parliament.

What to me is incredible about the six reports is that there is a black-hole in the middle of their solar system! The six planets freewheel round a sun that does not exist! Will the presidency be executive, semi-executive or ceremonial? How will the president be chosen? What the balance of powers between president, PM-cabinet and parliament? What of a second chamber? What the trade-off between FPTP and proportional representation in parliament and province? Total silence! Did January 8 2015 ever happen? The apex of state structure is undefined; it is a mystery. Delineation of state structure at its apex is mysteriously missing while subcommittees frolic with pissy details.

Judiciary

The proposed structure is conventional; the membership of the Supreme Court has been raised to fifteen and a Constitutional Court with well-defined powers is proposed. The report flays previous administrations for abuse of power and meddling with the judiciary (music to the ears of human rights activists) and makes a strong case for explicit clauses to ensure judicial independence and impartiality. Excellent; though words will not deter crass autocrats like the one whose grip we recently escaped, but still it’s helpful. What can stop despots is the determined will of the people as we learnt in January 2015.

Finance

There is a useful review of weakness of state financial mechanisms such as the budget making processes and inadequate control of borrowing. The report seeks to overcome weaknesses, ensure better control and management of public finance, budget processes and establish oversight. I am not constitutionalist enough to know how much should be laid down in the constitution and what is better relegated to ancillary legislation. Do you want to go in search of a two-thirds majority every time a procedural detail needs modification? A welcome feature is that the report seeks equitable and adequate provision of financial provisions for provinces. Some detail, including demographic factors is discussed.

The huge defect in the ‘Finance’ report is that it says nothing and proposes nothing to integrate the state into economic development. The report on the Public Service (next item) does make anaemic reference to a National Planning Commission, but the proposal has no gall or spunk. Last week I wrote approvingly of the Economic Development Bill (ECB) now before parliament which seeks to establish planning structures at centre and periphery. Remember I mentioned planets a while ago? Well the drafters of ECB and the folks who wrote this report inhabit different planets! How can so deep a proposal as the ECB find no resonance in the constitution?

Public service

A good discussion and review of shortcomings, but the problem is that the recommendations pertain not to the constitution but to subsidiary legislation that should be enacted later. For example quality, efficiency, fairness, reasonableness and people-oriented service delivery cannot be enforced constitutionally other than making sonorous pronouncements.

The Public Service Commission must have a constitutional warrant but the report goes on about a Senior Management Group to train officers, Public Sector Performance Review Committee, Public Corporation Service Commission (there goes independence of state corporations and more political inference than at present) and – help have they got anything more up their sleeve! – a National Committee of Public Service Commissions. The Steering Committee would be wise to sort sheep from goats when reading this report.

The report says Ministers must be accountable for instructions they give Ministry Secretaries, not only the other way round. Excellent, our Ministers habitually play pandu issuing verbal instructions about which they later deceive public and PM. This is a good proposal but what’s the best way to get it done – constitutionally?

There are many recommendations of constitutional ‘stature’. These include the establishment of Grama Rajayas to devolve power down to the broadest mass level, bilingualism with English constitutionally stipulated as link-language, and strengthening provincial public services. A debatable point is whether COPE, Public Accounts Committee and Committee on Public Petitions should be hardwired into the constitution.

Fundamental Rights

The introduction features the vagaries of fundamental rights in Lanka since independence and offers a review of human rights worldwide. This is true but certain to be ignored by dictators everywhere and – god forbid – in Lanka, again. This sour note aside, it’s a damned good to have a strong chapter on fundamental rights because of our misery with civil wars and white vans. The recommendations on individual, religious, language, trade union, family rights and the right to information are welcome.

The report recommends that social and economic rights be written into the constitution and be made justiciable. I do not oppose this – who can – but it’s a cry in the wilderness? How to enforce in the context of budgetary, regional and planning constraints? Socio-economic rights are right to education, health-care, food-nutrition-water-housing-sanitation and the right to a healthy environment and natural resources (whatever that adds up to). Very good but how is it going to be manifested, except in party manifestoes at election time?

The star example of the reports naiveté is the South African Constitution – the drafters Mecca – which did not help one iota to deter a half-mad president from, in effect, murdering millions of countrymen. Thambo Mbeki, an ignorant black-racist and pseudo witch doctor, refused to allow his people – the country worst affected by AIDS-HIV – to receive retroviral drug treatment resulting in the worst known medical calamity. Of what use was ‘finest social and economic rights chapter of any constitution’, or the much extolled free and independent judiciary in preventing the catastrophe? Nil!

Law and order

The subcommittee says consensus could not be reached and only the majority report is attached; the minority view is not made available, nor are we enlightened who dissented nor what the issues. Most of this report in not suitable for inclusion in the constitution; the subcommittee recognises this and suggests that two new laws National & Public Security Act (to replace the Public Security Ordinance) and Police Act (to replace the Police Ordinance) be enacted to include the bulk of its submissions.

The key constitutionally relevant feature is a structural overhaul of the police into National Police (NP), nine Provincial Police (PP) units and a Metropolitan Police (MP) for Colombo and environs. PP would be responsible for day to day stuff (traffic, crowd control, crime) and hence the large majority of personnel will end up here. NP will include CID, STF, maritime, serious commercial crimes and MP. It will also be responsible for national security, counter terrorism, the police academy and training. There will be a National Police Commission and Provincial Commissions to lay down schemes of recruitment, promotion, transfers and disciplinary control in their domains. Since transfer between NP/MP and PP is envisaged and since all officers above a certain rank will be eligible for the IGPship, it is not clear how divergences in recruitment and promotion policies will be rationalised.

Institutions-institutions-institutions! The success of the proposed police structure is predicated on creating healthy instructions at the provincial and national level. The authors of Why Nations Fail (Daron Acemoglu and James Robinson) assert that states flop when they fail to build vibrant institutions. This will be the decisive challenge mediating the success of the proposed police system.

A second part of the report is devoted to National Security and envisages the repeal of the much hated “Emergency Law” – hooray! However it is to be replaced by new regulations under which a State of Emergency can be declared for 34 itemised reasons – phew! The list is extensive and constitutes an infringement of the rights of the citizen and an erosion of protection from abuses by the state; so not much gained. The good side is proposed checks and controls on extension of a State of Emergency and a special majority (maybe two-thirds but not specified) will be needed to extend it beyond three months. Citizens can also file for judicial review of a declaration or against specific provisions.

Centre-periphery relations

This piece is longer than my usual and I will surely have to return to this topic in the coming weeks; so let me be brief. I like this report, it sensibly avoids hornet’s nest rousing words like ‘unitary’ and federal and the practical minded recommendations it makes have my support. The clout of the Governor will be curbed to the benefit of Provincial Councils (PC), Provincial Ministers and the Chief Minister and his ability to block PC decisions will be time limited – this will mean more devolution of power. Provincial authority over state land is enhanced and police powers will be more devolved since the Province’s Police (PP above) force will report to the relevant provincial minister. There is also substantial discussion of the provincial public service and provincial finances.

An important recommendation is to give the third-tier of administration (Local Government) greater power and recognition. A vital tool to accomplish this is the Gramma Raja (GR) concept. GR is a village council (of more than one village to limit the number); a statutorily recognised community level forum. GRs will assist, advise and monitor local authorities, Provincial Councils and the National Government it says in one place and elsewhere that GRs will not undermine Provincial and Local Authorities. A lot of thinking will need to go into formulation supporting legislation.

I will wind up with a few largely supportive comments. There is enough meat in the six reports to build a good constitution, equally useful are the ancillary ideas thrown up for supporting legislation. The envisaged practicable devolution avoiding verbiage that will rouse Lanka’s abundant supply of racists is workable. That such a degree of unanimity has been achieved by parliamentarians with varied ethnic delusions and partisan hues is encouraging. Missing are chapters on the apex political structure and on the directive role of the state in economic development.